Kennelly v. Burgess
| Decision Date | 01 September 1994 |
| Docket Number | No. 43,43 |
| Citation | 337 Md. 562,654 A.2d 1335 |
| Parties | Kevin E. KENNELLY et ux. v. Scott E. BURGESS et al. , |
| Court | Maryland Court of Appeals |
Leo Wm. Dunn, Jr. (Dunn & Emig, P.A., on brief), Greenbelt, for petitioners.
David A. Levin (Daniel C. Costello, Wharton, Levin, Ehrmantraut, Klein & Nash, P.A., on brief), Annapolis, for respondents.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.
The issue this Court must resolve in the instant case is whether, in a medical malpractice case, a jury instruction that "an unsuccessful result following medical treatment is not evidence of negligence" is erroneous. We must also consider whether, having given this "mere happening" type of instruction, the trial court should have given an additional instruction that an expert witness may infer negligence from the negative results of a medical procedure. We hold that the instruction as given was erroneous. We further hold that, even had the first instruction been a proper "mere happening" instruction, the petitioners' requested instruction regarding an expert's permissible inference of negligence should have been given.
On April 12, 1988, petitioner, Kevin E. Kennelly, presented himself to respondent, Dr. Scott E. Burgess, an otolaryngologist. 1 Mr. Kennelly complained of a persistent cough, heavy postnasal drainage, some distortion of smell and taste, and a chronic foul taste in his mouth. He further informed Dr. Burgess that four separate courses of antibiotics had failed to alleviate his symptoms. After prescribing a fifth unsuccessful course of antibiotics and reviewing a CAT scan of the area, Dr. Burgess recommended a surgical procedure known as an intranasal ethmoidectomy to relieve Kennelly's chronic sinusitis. This procedure involves the removal of the diseased mucous membranes from both sides of the nasal passages. The area of the nasal passages involved in this procedure is separated from the brain by a thin bone tissue. In performing this surgery, Dr. Burgess used the "classical method," by which, in removing the mucous membranes with forceps, the surgeon uses a head-mounted light to view the nasal cavity and relies a great deal on his sense of touch where he cannot see. 2
The surgery was performed on May 11, 1988. After the surgery, Dr. Burgess informed Kennelly's wife, Lynette, that "all went well except that there was a lot of excess bleeding." However, Mrs. Kennelly received a phone call from the hospital early the next morning informing her that Mr. Kennelly was not recovering properly. Mrs. Kennelly was informed that a brain scan had been ordered and that Mr. Kennelly was being put in the hands of a neurosurgeon, Dr. David Tolner. Mrs. Kennelly was also informed that the pathology report done after surgery found portions of Mr. Kennelly's brain in the specimens. Describing her observations of Mr. Kennelly after surgery, Mrs. Kennelly testified:
Arrangements were then made to transfer Mr. Kennelly to Johns Hopkins Hospital where he came under the care of Dr. Haring Nauta. An angiogram indicated that an artery in the cranial cavity had been injured and had formed an aneurysm. Tests also indicated a spinal fluid leakage. Dr. Nauta then performed a bifrontal craniotomy to clip the artery, remove the aneurysm, and repair the cerebral spinal fluid leak.
In performing the bifrontal craniotomy, Dr. Nauta found "two neatly nibbled defects in the bone" along the floor of the skull cavity. Dr. Nauta reported to Dr. Burgess that there had been a "definite penetration into the brain." According to Dr. Nauta, the holes observed in the skull cavity had been caused by a surgical instrument during the intranasal ethmoidectomy. As a result of this injury to the brain, Dr. Nauta believed that Mr. Kennelly had sustained permanent organic brain damage and would be unable to return to his former employment as a business executive.
Pursuant to Maryland Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Article, § 3-2A-04, the Kennellys filed a claim against Dr. Burgess, M.D. and his medical practice, Scott E. Burgess, P.A., with the Director of the Health Claims Arbitration Office, alleging that Dr. Burgess violated the applicable standard of care during the performance of the ethmoidectomy. On November 13, 1991, a Health Claims Arbitration Panel found in favor of Dr. Burgess. The petitioners filed a notice of rejection of the Health Claims award and brought an action to nullify the award in the Circuit Court for Anne Arundel County.
At trial, the petitioners attempted to show negligence by establishing that the surgical instrument used during the procedure, known as the Blakeslee forceps, had "penetrated through the dura and through the roof of the ethmoid and the dura into the brain and came up through the nasal passage." Dr. Nauta testified for the petitioners and stated that the defects he observed in the bone were "clearly" caused by an operating instrument. Dr. Ferdinand Rodriquez, the pathologist at North Arundel Hospital who had examined the tissue samples removed by Dr. Burgess, testified that the specimens examined contained both grey matter, from the superficial part of the brain, and white matter, from the deeper portion of the brain containing the brain fibers.
The petitioners also relied on the testimony of their expert witness, Dr. James Stankiewicz, a professor and vice-chairman of the Department of Otolaryngology--Head and Neck Surgery at Loyola University Medical Center. Dr. Stankiewicz reviewed the records from both North Arundel and Johns Hopkins hospitals, as well as the prior depositions of Dr. Burgess and the respondents' other expert witnesses. On direct examination, Dr. Stankiewicz testified as to Dr. Burgess's alleged breach of the standard of care:
Thus, the petitioners attempted to establish that Dr. Burgess breached the standard of care by penetrating into the brain with a surgical instrument as the brain rested in its normal position.
In contrast, the respondents argued that the roof separating the sinuses from the brain was very thin and could have been removed during surgery. This would permit the brain to herniate through the resulting holes in the skull cavity. The respondents asserted that this scenario would not establish a breach of the applicable standard of care. Dr. Douglas E. Mattox, testifying as an expert for Dr. Burgess, stated that the fact that complications arose did not establish negligence. He further testified:
Dr. Mattox also testified that there were "two potential mechanisms" for the injury suffered by Mr. Kennelly. One can either "physically go inside the cranial cavity with the forceps" or "as the bone has been removed, the brain is allowed to ... to fall down into the sinus cavity where ... where some fragments were removed." Dr. Bruce Jafek also testified for Dr. Burgess and stated that the complications that occurred "can occur in the hands of the most skilled surgeon."
At the conclusion of testimony, the trial judge instructed the jury regarding the applicable law. The judge instructed the jury:
"A witness who has special training or experience in a given field is permitted to express opinions based on observed or assumed facts to aid you in deciding the issues in the case. In weighing the opinions of an expert, you should consider the expert's experience, training and skills, and the expert's knowledge of the subject matter about which he's expressing an opinion. You should give expert testimony the weight and value you believe it should have.
* * * * * *
[Y]ou are to consider the word malpractice and the word negligence as synonymous in their meanings and the words may be used interchangeably. General rules of negligence apply to malpractice cases as well as to ordinary claims of negligence. Negligence is doing something that a person using ordinary care would not do, or not doing something that a person using ordinary care would do.... You are instructed that the standard of care which ... a physician is required to adhere to in the practice of his profession is only that ... of a reasonably competent physician under the same or similar circumstances.... An unsuccessful result following medical treatment is not evidence of negligence. Kevin and Lynette Kennelly carry the burden to prove negligence." (Emphasis added).
Petitioners' counsel objected to the court's instruction that an unsuccessful result is not evidence of negligence. Counsel also objected to the court's failure to give a proposed instruction that "an expert witness, because he is an expert, can infer negligence from the result of the medical practice." The petitioners...
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